Legitimate Offspring


Bahishti Zewar, Fiqh, Part 4-Nikah (Marriage) in Islam / Wednesday, September 22nd, 2010

1. When a married woman gives birth to a child, that child will be attributed to her husband. It is not permissible to say that this child is not her husband’s and that it is someone else’s merely on a doubt or suspicion. It is also not permissible to refer to such a child as being illegitimate. In an Islamic state, such a slanderer will be whipped.

2. The minimum period of pregnancy is six months and the maximum period is two years. In other words, a baby remains in the womb of a woman for a minimum period of six months. It cannot be born before this period. The maximum period it can remain in the womb is two years and not more than this.

3. The basic principle of the Sharî‘ah is that as far as is possible, a child will not be regarded as being illegitimate. When there is no option left, only then will the ruling be given that it is illegitimate and only then will we say that the woman has committed a sin.

4. A person issued a talâqur raj’î to his wife. Thereafter, she gave birth to a child within a period of two years. This child belongs to this husband. It is not permissible to regard this child as being illegitimate. According to the Sharî‘ah, this child’s lineage is in order. Even if this child is born one day before the expiry of two years, the same rule will apply. It will be regarded as if she had fallen pregnant before the divorce could be issued to her, that the child remained in her womb for up to two years and that after delivering the child her ‘iddah has come to an end and she has now come out of the nikâh with this man.

If this woman has already admitted that her ‘iddah has come to an end before she could give birth, then there will be no alternative but to say that this child is illegitimate. In fact, if such a woman gives birth to a child after two years and she has not admitted that her ‘iddah has come to an end as yet, even then this child will be that husband’s irrespective of how long it takes to deliver this child. In this case, it will be understood that they had engaged in sexual intercourse while she was still in her ‘iddah and that he had now revoked his divorce. Therefore, the child that is born will be his, this woman will still remain his wife, and the nikâh will not be annulled. If it is not the husband’s child, he must say so and once he rejects this child, the laws pertaining to li’ân will apply.

5. If a talâqul bâ’in was issued, the rule is that the child will be the husband’s if it is born within two years. If it is born after two years, it will be an illegitimate child. However, if the child is born after two years and the husband still claims that it is his child, it will not be illegitimate. In such a case it will be understood that they had unwittingly engaged in sexual intercourse while she was still in her ‘iddah and she fell pregnant thereafter.

6. An immature girl who is close to maturity was given a divorce. After the divorce, she gave birth to a child after a full nine months. This child is illegitimate. If it is born within nine months, it will be attributed to the husband. However, this girl will have to admit that she is pregnant while she is still in her ‘iddah, i.e within three months she will have to admit that she is pregnant so that the child will not be regarded as illegitimate. If the child is born within two years, it will be the husband’s child, i.e. it will be legitimate.

7. A woman’s husband passed away. If she gives birth to a child within two years from the time that he passed away, this child will not be illegitimate. Instead, it will be attributed to the husband. However, if the woman had already admitted to the expiry of her ‘iddah then there will be no option but to regard it as illegitimate. If it is born after two years, it will still be illegitimate.

Note: We learn from these rules that the habit of accusing a woman of adultery when she gives birth to a child a few months beyond nine months after the death of her husband is a major sin.

8. If a child is born before six months after the nikâh, it is illegitimate. If it is born on the completion of six months or thereafter, it is legitimate and it is a sin to have any doubts with regard to its legitimacy. However, if the husband rejects the child and says that it is not his, then the rules of li’ân will apply.

9. The nikâh has been performed, but according to custom, the bride did not leave her parents’ home as yet. In the meantime, she gives birth to a child and the husband does not reject it by saying that it is not his. This child will be regarded as the husband’s and will not be regarded as illegitimate. It is not permissible for others to regard it as illegitimate. If it is not the husband’s, he should reject it and upon rejecting it, the laws of li’ân will apply.

10. The husband is gone overseas for quite some time. Several years have passed and he has not come home. In the meantime, his wife gives birth to a child and the husband claims that it is his. Even in such a case, the Sharî‘ah will not regard this child as illegitimate and it will be attributed to the husband. However, if the husband rejects it after receiving this news, the laws of li’ân will apply.

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